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The Court of Appeal of Alberta recently released a decision, Alsaadi v Alberta College of Pharmacy, in which the Court considered whether section 79(3) of the Health Professions Act can be used to add new allegations during a hearing.
In this case, there were eight allegations of misconduct made against Mr. Alsaadi arising from over 700 instances of improper access to medical records of several individuals from the Netcare database over an extended period of time.
During the hearing, the Complaints Director identified further acts of unprofessional conduct and made an application to add five particulars to one of the allegations (allegation #7) in the Notice of Hearing. The Hearing Tribunal allowed the particulars to be added and adjourned the hearing for one month to allow Mr. Alsaadi time to respond to the new particulars.
Allegation #7 was generically worded, stating “Displayed conduct not consistent with the ethical requirement of honesty and the duty to comply with and cooperate with an investigator.”
The added particulars described incidents in which Mr. Alsaadi failed to comply with and cooperate with the investigator and the Complaints Director and also related to inconsistent positions taken by Mr. Alsaadi during the investigation process and hearing with respect to access to one individual’s file. The Hearing Tribunal found that Mr. Alsaadi had “flip-flopped during the hearing, giving evidence and making admissions that were irreconcilable” with prior information provided during the investigation process.
The Hearing Tribunal allowed the new allegations to be added under section 79(3) of the HPA, which states:
79(3) The hearing tribunal may hear evidence on any other matter that arises in the course of a hearing, but the hearing tribunal must give the investigate person notice of its intention to hear the evidence and on the request of the investigated person must grant an adjournment before hearing the evidence.
The issues on appeal to the Court of Appeal were:
- Can the Hearing Tribunal permit the Complaints Director to add new allegations to the Notice of Hearing during the hearing?
- Did the new complaints added to previous allegation #7 disclose conduct that is appropriately prosecuted as professional misconduct?
- Where the sanctions imposed on the appellant reasonable?
Adding the New Allegations
The Court of Appeal held that, although the added allegations related to non-cooperation, they were different in character from the original wording of allegation #7. If specific allegations are added to general existing allegations, but are different in character to the other particulars, they are new allegations, not particulars.
In the normal investigation process, the particulars of an allegation should be given to the member before the investigation is complete. However, this general rule does not preclude a notice of hearing from being amended in advance of or at the hearing. The Court held: “Correcting clerical errors or details in the notice of hearing is one thing, but adding entirely new allegations will seldom be appropriate.”
The main considerations are the fairness to the member subject to discipline and the effect on the entire process. Fairness will be the key consideration. The Court noted that adding a new allegation will seldom be appropriate during the hearing process.
The Court held that “read in context, s. 79(3) does not deal with the contents of the notice of hearing or the addition of particulars to it.” This section allows other evidence to be heard, it does not allow new allegations to be added.
The Court suggested that, if new misconduct comes to light during a hearing, the proper process to follow in most cases will be to direct a new hearing on the new allegations, as allowed by section 79(4) of the HPA.
The Court also found that the new allegations of non-cooperation arose out of the way Mr. Alsaadi presented his defence at the hearing, rather than his conduct during the investigation. The way a defence is conducted will not justify a more severe sanction for the underlying offence. The Court held that the way Mr. Alsaadi’s defence was conducted should not have created separate counts of misconduct, particularly counts to be dealt with at the same hearing.
Further, the Hearing Tribunal’s perception of Mr. Alsaadi’s conduct during the hearing directly led to a more severe sanction. The Court also held that the Hearing Tribunal should have taken into consideration the fact that Mr. Alsaadi was self-represented.
The Court found that the Hearing Tribunal was entitled to disbelieve Mr. Alsaadi’s defence, but this should not turn into further disciplinary charges in the same hearing.
The Court emphasized the importance of keeping the investigation process and the hearing process separate. Any appearance of close proximity or alliance between the role of the investigator and the Hearing Tribunal may be viewed as bias. The duty to cooperate in the investigation does not extend to the conduct at the hearing.
The Court found that it was unreasonable for the Hearing Tribunal to allow the new allegations to be added to the existing Notice of Hearing. The new allegations were different in character from the existing allegations and arose out of the way Mr. Alsaadi presented his defence. The adjournment given to Mr. Alsaadi did not cure the unfairness created by the amendment. Therefore, the appeal on this issue was allowed.
However, the Court left open the question of whether section 79(3) allows new allegations to be added during a hearing in other circumstances.
Appeal of the Sanction
Mr. Alsaadi also appealed the sanctions imposed upon him. The conduct of Mr. Alsaadi included a breach of the privacy of medical records of a number of individuals. His misconduct continued even after the investigation had commenced.
Sanctions imposed in professional discipline cases are entitled to deference on appeal and should not be disturbed unless they are demonstrably unfit or based on an error of law or principle.
Overall, the Court held that the sanctions imposed by the hearing Tribunal were unreasonably punitive and disproportionate to the misconduct. Further, since the added allegations were being set aside, the penalty for those infractions had to be set aside. The appeal on the sanctions was allowed, in part.
The Court held that the Hearing Tribunal overemphasized the need for deterrence and denunciation, and imposed an excessively punitive sanction. The Court found the severity of the sanction was disproportionate to Mr. Alsaadi’s conduct and was, therefore, unfit and unreasonable.
The Court emphasized that, although ensuring the privacy of information is important, Mr. Alsaadi’s conduct did not involve any risk of harm to any patient, did not lack pharmaceutical skill, did not involve sexual misconduct or fraud, and did not involve the misuse of drugs. Mr. Alsaadi did not profit or gain from his conduct, did not act out of malice, and made no further use of the information he retrieved. Even though denunciation and deterrence are important factors, the sanctions must be measured, proportionate and reasonable.
The Court also found that the Hearing Tribunal failed to give appropriate weight to the collateral consequences: charges laid under the Health Information Act and his lengthy withdrawal from the profession during these proceedings. Such collateral consequences mitigate the need for denunciation and deterrence.
In considering the length of these proceedings, the Court changed the sanctions itself rather than remitting the decision on sanctions back to the Hearing Tribunal for reconsideration.
Decision on Costs
The Hearing Tribunal had ordered Mr. Alsaadi to pay the costs of the hearing, to a maximum of $120,000. The Court held that, because the addition of the further allegations complicated the hearing and resulted in an adjournment, Mr. Alsaadi’s responsibility for the costs was reduced to $100,000.
Justice Khullar, agreeing with the majority of the Court in the result, discussed the costs decision in more detail than the majority. In particular, Justice Khullar commented on two aspects of the law: the development of a default approach being used by hearing tribunals, and the relevance of the phrase “crushing financial blow”.
Justice Khullar found that, although costs are not imposed as a form of punishment, the financial hardship arising from a costs award can be more punitive than a sanction. She raised concern with this practice, stating that the costs awarded create a disincentive to defend oneself from a complaint. Hearing tribunals should consider all the relevant factors when determining whether to award costs.
The comments by Justice Khullar may represent a signal from the Court of Appeal for how costs will be addressed in future appeals.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.